Common use of Sections 409A and 457A of the Code Clause in Contracts

Sections 409A and 457A of the Code. (i) It is intended that the payments and benefits under this Agreement comply with Section 409A of the Code and the regulations promulgated thereunder (“Section 409A”) and, to the extent applicable, Section 457A of the Code and the regulations promulgated thereunder (“Section 457A”), and, accordingly, to the maximum extent permitted, all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A and, to the extent applicable, Section 457A, all in a manner intended to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the requirements of Section 409A and, to the extent applicable, Section 457A. In no event whatsoever shall the Company or any other member of the Company Group be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A and/or Section 457A or damages for failing to comply with Section 409A and/or Section 457A. (ii) Neither Executive nor any of his creditors (other than the Company and the members of the Company Group) or beneficiaries shall have the right to subject any “nonqualified deferred compensation” (within the meaning of Section 409A) payable under this Agreement or under any other plan, policy, arrangement or agreement of or with the Company or any member of the Company Group (this Agreement and such other plans, policies, arrangements and agreements, the “Company Plans”) to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A, any “nonqualified deferred compensation” (within the meaning of Section 409A) payable to Executive under any Company Plan may not be reduced by, or offset against, any amount owing by Executive to the Company or any member of the Company Group. (iii) Notwithstanding anything to the contrary in this Agreement, if, at the time of Executive’s separation from service (within the meaning of Section 409A), (A) Executive is a “specified employee” (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time) and (B) the Company shall make a good faith determination that an amount payable under the Company Plans constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company and the Company Group shall not pay such amount on the otherwise scheduled payment date, but shall instead accumulate such amount and pay it, without interest, on the first business day after such six-month period. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of Executive’s employment unless such termination is also a “separation from service” (within the meaning of Section 409A) and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (iv) For purposes of Section 409A, each payment hereunder will be deemed to be a separate payment as permitted under Treas. Reg. Section 1.409A-2(b)(2)(iii). (v) Notwithstanding anything to the contrary in this Agreement, to the extent that reimbursements or other in-kind benefits provided under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (1) the reimbursements or other in-kind benefits provided to Executive under this Agreement and any Company Plan during any calendar year shall not affect the reimbursements or other in-kind benefits to be provided to Executive in any other calendar year, (2) the right to such reimbursements or other in-kind benefits cannot be liquidated or exchanged for any other benefit and shall be provided in accordance with Treas. Reg. Section 1.409A-3(i)(1)(iv) or any successor thereto, and (3) reimbursement payments shall be made to Executive in accordance with the applicable policies of the Company and the Company Group, but in no event later than the last day of the calendar year following the calendar year in which the underlying expense is incurred.

Sections 409A and 457A of the Code. (ia) It With respect to Awards subject to Section 409A and 457A of the Code, this Award Agreement is intended to comply with the requirements of Section 409A and 457A of the Code, and the provisions of this Award Agreement shall be interpreted in a manner that satisfies the payments requirements of Section 409A and benefits 457A of the Code, and this Award Agreement shall be operated accordingly. If any provision of this Award Agreement or any term or condition of this Award Agreement would otherwise frustrate or conflict with this intent, the provision, term or condition will be interpreted and deemed amended so as to avoid this conflict. If an amount payable under this Agreement comply with Award as a result of the Participant’s Termination of Service (other than due to death) occurring while the Participant is a “specified employee” under Section 409A of the Code and the regulations promulgated thereunder (“were to constitute a deferral of compensation subject to Section 409A”) and, to the extent applicable, Section 457A 409A of the Code Code, then payment of such amount shall not occur until six months and one day after the regulations promulgated thereunder (“Section 457A”)date of the Participant’s Termination of Service, and, accordingly, to the maximum extent permitted, all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties except as permitted under Section 409A and, to the extent applicable, Section 457A, all in a manner intended to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the requirements Code. If this Award includes a “series of Section 409A and, to the extent applicable, Section 457A. In no event whatsoever shall the Company or any other member of the Company Group be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A and/or Section 457A or damages for failing to comply with Section 409A and/or Section 457A. (ii) Neither Executive nor any of his creditors (other than the Company and the members of the Company Group) or beneficiaries shall have the right to subject any “nonqualified deferred compensationinstallment payments” (within the meaning of Section 409A1.409A-2(b)(2)(iii) payable under this Agreement or under any other plan, policy, arrangement or agreement of or with the Company or any member of the Company Group (this Agreement and such other plans, policies, arrangements and agreementsTreasury Regulations), the Participant’s right to the series of installment payments shall be treated as a right to a series of separate payments and not as a right to a single payment, and if this Award includes “Company Plans”) to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A, any “nonqualified deferred compensationdividend equivalents” (within the meaning of Section 409A1.409A-3(e) payable to Executive under any Company Plan may not be reduced byof the Treasury Regulations), or offset against, any amount owing by Executive the Participant’s right to the dividend equivalents shall be treated separately from the right to other amounts under this Award. Notwithstanding the foregoing, the tax treatment of the benefits provided under this Award Agreement is not warranted or guaranteed, and in no event shall the Company be liable for all or any member portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A and 457A of the Company GroupCode. (iiib) Notwithstanding anything any provision of this Award Agreement to the contrary contrary, in the event the Award Administrator determines that this AgreementAward may be subject to Section 409A or Section 457A of the Code, ifthe Award Administrator may adopt such amendments to this Award Agreement or adopt other policies and procedures (including amendments, at the time of Executive’s separation from service (within the meaning of Section 409Apolicies and procedures with retroactive effect), or take any other actions, that the Award Administrator determines are necessary or appropriate to (Aa) Executive is a “specified employee” exempt this Award from Section 409A or Section 457A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to this Award, or (within b) comply with the meaning requirements of Section 409A or Section 457A and using thereby avoid the identification methodology selected by application of any adverse tax consequences under such Sections. (c) To the Company from time to time) and (B) the Company shall make a good faith determination that an amount payable under the Company Plans constitutes deferred compensation (within the meaning extent applicable, notwithstanding any provision of Section 409A) the payment of which is required to be delayed pursuant this Award Agreement to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409Acontrary, then the Company and the Company Group shall not pay such amount on the otherwise scheduled payment date, but shall instead accumulate such amount and pay it, without interest, on the first business day after such six-month period. A a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement an Award that is subject to Section 409A providing for the payment of any amounts or benefits upon or following a termination of Executivea Participant’s employment unless such termination is also a “separation from service” (within the meaning of Section 409A) and, for purposes of any such provision of this Agreementsuch Award, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (iv) For purposes of Section 409A, each payment hereunder will be deemed to be a separate payment as permitted under Treas. Reg. Section 1.409A-2(b)(2)(iii). (v) Notwithstanding anything to the contrary in this Agreement, to the extent that reimbursements or other in-kind benefits provided under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (1) the reimbursements or other in-kind benefits provided to Executive under this Agreement and any Company Plan during any calendar year shall not affect the reimbursements or other in-kind benefits to be provided to Executive in any other calendar year, (2) the right to such reimbursements or other in-kind benefits cannot be liquidated or exchanged for any other benefit and shall be provided in accordance with Treas. Reg. Section 1.409A-3(i)(1)(iv) or any successor thereto, and (3) reimbursement payments shall be made to Executive in accordance with the applicable policies of the Company and the Company Group, but in no event later than the last day of the calendar year following the calendar year in which the underlying expense is incurred.

Sections 409A and 457A of the Code. (ia) It With respect to Awards subject to Section 409A and 457A of the Code, this Award Agreement is intended to comply with the requirements of Section 409A and 457A of the Code, and the provisions of this Award Agreement shall be interpreted in a manner that satisfies the payments requirements of Section 409A and benefits 457A of the Code, and this Award Agreement shall be operated accordingly. If any provision of this Award Agreement or any term or condition of this Award Agreement would otherwise frustrate or conflict with this intent, the provision, term or condition will be interpreted and deemed amended so as to avoid this conflict. If an amount payable under this Agreement comply with Award as a result of the Participant’s Termination of Service (other than due to death) occurring while the Participant is a “specified employee” under Section 409A of the Code and the regulations promulgated thereunder (“were to constitute a deferral of compensation subject to Section 409A”) and, to the extent applicable, Section 457A 409A of the Code Code, then payment of such amount shall not occur until six months and one day after the regulations promulgated thereunder (“Section 457A”)date of the Participant’s Termination of Service, and, accordingly, to the maximum extent permitted, all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties except as permitted under Section 409A and, to the extent applicable, Section 457A, all in a manner intended to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the requirements Code. If this Award includes a “series of Section 409A and, to the extent applicable, Section 457A. In no event whatsoever shall the Company or any other member of the Company Group be liable for any additional tax, interest or penalty that may be imposed on Executive by Section 409A and/or Section 457A or damages for failing to comply with Section 409A and/or Section 457A. (ii) Neither Executive nor any of his creditors (other than the Company and the members of the Company Group) or beneficiaries shall have the right to subject any “nonqualified deferred compensationinstallment payments” (within the meaning of Section 409A1.409A- 2(b)(2)(iii) payable under this Agreement or under any other plan, policy, arrangement or agreement of or with the Company or any member of the Company Group (this Agreement and such other plans, policies, arrangements and agreementsTreasury Regulations), the Participant’s right to the series of installment payments shall be treated as a right to a series of separate payments and not as a right to a single payment, and if this Award includes “Company Plans”) to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A, any “nonqualified deferred compensationdividend equivalents” (within the meaning of Section 409A1.409A-3(e) payable to Executive under any Company Plan may not be reduced byof the Treasury Regulations), or offset against, any amount owing by Executive the Participant’s right to the dividend equivalents shall be treated separately from the right to other amounts under this Award. Notwithstanding the foregoing, the tax treatment of the benefits provided under this Award Agreement is not warranted or guaranteed, and in no event shall the Company be liable for all or any member portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A and 457A of the Company GroupCode. (iiib) Notwithstanding anything any provision of this Award Agreement to the contrary contrary, in the event the Award Administrator determines that this AgreementAward may be subject to Section 409A or Section 457A of the Code, ifthe Award Administrator may adopt such amendments to this Award Agreement or adopt other policies and procedures (including amendments, at the time of Executive’s separation from service (within the meaning of Section 409Apolicies and procedures with retroactive effect), or take any other actions, that the Award Administrator determines are necessary or appropriate to (Aa) Executive is a “specified employee” exempt this Award from Section 409A or Section 457A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to this Award, or (within b) comply with the meaning requirements of Section 409A or Section 457A and using thereby avoid the identification methodology selected by application of any adverse tax consequences under such Sections. (c) To the Company from time to time) and (B) the Company shall make a good faith determination that an amount payable under the Company Plans constitutes deferred compensation (within the meaning extent applicable, notwithstanding any provision of Section 409A) the payment of which is required to be delayed pursuant this Award Agreement to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409Acontrary, then the Company and the Company Group shall not pay such amount on the otherwise scheduled payment date, but shall instead accumulate such amount and pay it, without interest, on the first business day after such six-month period. A a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement an Award that is subject to Section 409A providing for the payment of any amounts or benefits upon or following a termination of Executivea Participant’s employment unless such termination is also a “separation from service” (within the meaning of Section 409A) and, for purposes of any such provision of this Agreementsuch Award, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” (iv) For purposes of Section 409A, each payment hereunder will be deemed to be a separate payment as permitted under Treas. Reg. Section 1.409A-2(b)(2)(iii). (v) Notwithstanding anything to the contrary in this Agreement, to the extent that reimbursements or other in-kind benefits provided under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (1) the reimbursements or other in-kind benefits provided to Executive under this Agreement and any Company Plan during any calendar year shall not affect the reimbursements or other in-kind benefits to be provided to Executive in any other calendar year, (2) the right to such reimbursements or other in-kind benefits cannot be liquidated or exchanged for any other benefit and shall be provided in accordance with Treas. Reg. Section 1.409A-3(i)(1)(iv) or any successor thereto, and (3) reimbursement payments shall be made to Executive in accordance with the applicable policies of the Company and the Company Group, but in no event later than the last day of the calendar year following the calendar year in which the underlying expense is incurred.